William Wengert v. Phoebe Ministries

October 19, 2012

WILLIAM WENGERT, PLAINTIFF,v.PHOEBE MINISTRIES, DEFENDANT.

The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

William Wengert was fired from his job as a certified nursing assistant at Wyncote Church Home ("Wyncote," incorrectly designated as Phoebe Ministries) following an incident at Wyncote in which a resident suffered a broken fibula. Wengert believes that the actual reason for his termination was his HIV-positive status. Presently before the Court is Wyncote's motion for summary judgment. For the reasons that follow, the Court grants the motion.

I. BACKGROUND

A. July 15, 2011 Incident and Its Aftermath

Wengert worked at Wyncote as a certified nursing assistant from April 1993, until July 19, 2011. (Def.'s Statement of Undisputed Facts [Def.'s SOF] ¶ 1.) According to Wyncote, Wengert's termination was the result of an incident that occurred on July 15, 2011. On that date, Wengert was working a shift from 2:15 p.m. to 8:15 p.m. (Id. ¶ 2.) Around 8:00 p.m., another certified nursing assistant, Patricia Washington, asked Wengert to help her to shower a resident named Josephine Pinegar. (Id. ¶ 3.) Wengert knew that Pinegar had a history of falls, and he had helped lift her numerous times. (Id.)

Wengert and Wyncote offer somewhat different accounts of what occurred next. According to Wengert, after Washington sought his assistance, he went to the nurse's station to check Pinegar's care card because he was unfamiliar with Pinegar's needs. (Def.'s Mot. for Summ. J. Ex. 2 [Wengert Dep.] at 12.) He could not find a care card for Pinegar and upon returning to Pinegar's room, he was told by Washington not to worry about it because she knew how to care for Pinegar. (Id. at 12-13.) Washington and Wengert placed Pinegar on a sit-to-stand lift from her wheelchair, placed straps under Pinegar's armpits, and hooked those straps to the lift. (Id. at 13, 15-17.) The straps were not on tightly because Pinegar did not like the sit-to-stand lift. (Id. at 19.) Pinegar grabbed onto the lift and as she "got in the standing position," she moved her bowels. (Id. at 17.) Pinegar "went into . . . dramatics, like she got really embarrassed and slid and let go and she just let her body go." (Id.) As Pinegar began to fall, Washington and Wengert quickly grabbed her and lowered her to the floor for a brief period of time. (Id. at 13-14, 18.) Wengert went to look for a mechanical device to lift Pinegar from the ground, but he could not locate one on the floor. (Id. at 24, 26.) Wengert then informed Pam Moore, a nurse nearby, of what had just occurred. (Id. at 14, 27) Moore did not want to get involved in the situation and directed Wengert to find somebody else. (Id. at 27-28.) He returned to the shower room. (Id. at 28.) Wengert and Washington then placed a sheet under Pinegar, used the sheet to lift her into a wheelchair, and Washington brought her back to her room. (Id. at 14, 25, 28-29.) Wengert did not consider Pinegar's collapse to be a fall. (Id. at 30.) Washington agreed that the incident would not necessarily be considered a fall under Wyncote's policies. (Def.'s Mot. for Summ. J. Ex. 3 [Washington Dep.] at 17-18.) As a result of the events on July 15, 2011, Pinegar suffered a broken left fibula. (Def.'s SOF ¶ 10.)

An investigation into the incident commenced. Wyncote's version of the events is based on the results of that investigation. The investigation report states that it was completed by a supervising nurse, Lindsey Alessandro.*fn1 (Wengert Dep. Ex. 1 [Investigation Report]; Pl.'s Resp. to Def.'s Mot. for Summ. J. [Pl.'s Resp.] Ex. G [Bannon Dep.] at 16.) Alessandro testified that she and Susan Schlener, Wyncote's Director of Nursing, performed the investigation and that they interviewed Pinegar, Moore, and a nurse named Kodjo Agbadan, as well as took statements from Wengert and Washington. (Bannon Dep. at 23-24.)

Washington and Wengert provided written statements about the incident. Wengert testified that she was immediately lowered from the lift to the ground, whereas Washington reported that Pinegar was in her wheelchair after falling from the lift. Specifically, according to Washington's statement, "while placing [Pinegar] onto the stand lift she started slipping thru the straps of the lift. So we removed her sat her back down into the wheelchair. We brought the shower chair closer and tried to pivot her back onto the shower chair." (Def.'s Mot. for Summ. J. Ex. 1 [Schlener Aff.] Ex. A [Washington Statement].) At that point, Pinegar lost control of her bowels, and Wengert and Washington had to lower her onto the floor. (Id.) Wengert got a sheet and they moved Pinegar back into her wheelchair, and told a nurse what had transpired. (Id.) Pinegar began complaining to Washington about ankle pain, and a nurse came in asking questions and had Washington take Pinegar's vital signs. (Id.)

Pinegar provided a statement about the incident to Moore on July 15, 2011. She stated that Wengert and Washington wanted her to sit down in a shower chair. (Wengert Dep. Ex. P1-16 [Moore Statement].) They stood behind her and when Pinegar tried to stand, her knees buckled and "then [she] was on [her] knees in front of the bathing chair." (Id.) Pinegar tried to turn herself around so she could sit in the chair. (Id.) She instructed Wengert to lay her down on the floor, and Wengert told her that she was already on the floor. (Id.) Wengert and Washington then pulled her up by her arms and placed her in the wheelchair. (Id.) She was then wheeled to her room, where she told Washington that her ankle hurt. (Id.)

Schlener also conducted an interview with Pinegar. Pinegar stated that Wengert and Washington did not use a mechanical lift to transfer her to the shower chair and that they failed to call a nurse, though one eventually entered Pinegar's room after she was wheeled back, but "[n]ot for a long time." (Wengert Dep. Ex P1-17 [Pinegar Interview].)

Based on the evidence obtained, Alessandro and Schlener "felt that this incident was substantiated, policies and procedures were not followed, and it actually resulted in an injury of the resident." (Bannon Dep. at 25.) On July 19, 2011, Schlener fired both Wengert and Washington. (Def.'s SOF ¶ 16.) Wengert testified that during the phone call with Schlener and others in which he was fired, the incident with Pinegar was referred to as an "abuse situation" that involved "neglect or abuse." (Wengert Dep. at 36-37.)

B. Wengert's HIV status

Around January 24, 2011, Wengert was bitten on the shoulder by a patient. (See id. at 71-73.) Karen Rozak, Defendant's occupation nurse, informed Wengert that as a result of the incident, he would need to have blood drawn to test for HIV. (Id. at 72.) Wengert then said to Rozak, "nobody was aware of this, but I am HIV positive, so you're going to find out that I have it." (Id.) Rozak told Wengert that Marian Oglesby, Wyncote's director of nursing prior to Schlener, had informed her that Wengert was possibly HIV-positive. (Id. at 72-73; see also Pl.'s Resp. Ex. D [Def.'s Resps. to Pl.'s First Set of Admis.] at 3.)

Wengert believed that a number of his co-workers were aware of his HIV-positive status. According to Wengert, he would from time to time arrive at work with notes from the Jonathan Lax Treatment Center, which treats patients with HIV. (Wengert Dep. at 74-75.) Wengert suggested that employees at Wyncote could have learned of his HIV-positive status based on these notes. (Id.) He also contended that Alessandro's behavior toward Wengert changed after the biting incident, thereby suggesting that she knew that he was HIV-positive. (Id. at 80.) Based on an incident when Moore disciplined Wengert for failing to use gloves when he took a resident to the bathroom, Wengert also ...

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